EU International Agreements : An Analysis of Direct Effect and Judicial Review Pre- and Post-Lisbon

La 4e de couverture indique : "This book provides an analysis of the institutional and constitutional effects of EU international agreements, with a particular focus on their potential effects on private parties. The European Union has entered into a number of international agreements that raise serious fundamental rights concerns due to a lack of parliamentary and judicial scrutiny. The book addresses these issues in the context of developments contained in the Lisbon Treaty, focusing on primary and secondary sources, including German/French scholarship, as well as EU and national case law." Acknowledgements 5 Table of Cases 6 Other Jurisdictions 15 National Courts 15 Contents 16 List of Abbreviations 20 Chapter 1: General Introduction 25 1 Setting the Problem 25 2 Laying Out the Structure 28 3 Incurse: EU-US 29 3.1 Typology of the Existing Agreements 29 3.2 Status of International Agreement in the US Legal Order 30 3.2.1 The Place and the Effect of Treaties in the Law of the US 30 3.2.2 The Place and the Effect of Congressional-Executive Agreements in the Law of the US 31 3.2.3 The Place and the Effect of Sole Executive Agreements in the Law of the US 31 3.2.4 Limitations on the International Obligations Which the US Has Assumed 32 Chapter 2: The Court ́s Case Law on Direct Effect of International Agreements (Free Trade Associations, Accession Associations,... 33 1 Introduction 33 2 Theoretical Framework 34 2.1 The Concept of Direct Effect 34 2.1.1 Constitutional Situation in Each Member State 34 2.1.2 The Union ́s Dualistic/vs. Monistic Philosophy Towards International Law (Haegeman) 35 2.1.3 Direct Effect vs. Direct Applicability 37 2.2 The Formula for Direct Effect 38 3 Asymmetry (Variance): The Court ́s Different Approaches to Direct Effect 39 3.1 The (Absence of) Direct Effect of GATT/WTO Law in the Community Legal Order 40 3.1.1 International Fruit Company Line of Reasoning (GATT 1947) 40 3.1.1.1 Why Are Provisions of GATT Special in Nature? 41 3.1.2 Transition from GATT 1947 to WTO Agreement and GATT 1994 42 3.1.2.1 Characteristics of the WTO System 42 3.1.2.2 Different Views on the Legal Effects 44 3.1.2.3 Portugal v Council Line of Reasoning 46 3.1.2.4 Grounds for Denying Direct Effect in the Case of WTO/GATT 48 3.1.2.5 Continuation of the Portugal v Council Line of Reasoning 51 3.1.3 Rulings by the WTO Dispute Settlement Body (DSB) 55 3.2 The Possible Direct Effect of Provisions of FTAs (EFTA/Non-EFTA), Accession/Development Associations and the GC ́s Case Law... 57 3.2.1 Effects of FTAs: Kupferberg Line of Reasoning (FTAs with EFTA Countries) 59 3.2.2 Continuation of the Kupferberg Line of Reasoning (FTAs with Non-EFTA Countries, Accession/Development Associations and t... 62 3.2.2.1 Direct Effect of Provisions of Non-EFTA Free Trade Agreements 63 3.2.2.2 Direct Effect of Provisions of Accession and Development Associations 64 3.2.2.3 Direct Effect of Provisions of the EEA Agreement 67 3.3 Concluding Remarks on the Apparent Asymmetry 67 4 Symmetry (Invariance): The Demarcation Between Relevant and Irrelevant Parameters for the Recognition of Direct Effect 68 4.1 Intention of the Contracting Parties in Absence of an Express Provision in the Agreement 69 4.2 `Wording, Purpose and Nature ́ Component: Relevant and Irrelevant Parameters for the Recognition of Direct Effect 70 4.2.1 Similarity of Terms 70 4.2.2 Imbalance Between Obligations (Non-reciprocity) and the Ability of the Contracting Parties to Preserve and Pursue Intere... 71 4.2.3 Degree of Integration 72 4.2.4 Safeguard Clauses 72 4.3 Concluding Remarks on the Demarcation Between Relevant and Irrelevant Parameters for the Recognition of Direct Effect 73 5 The Court ́s Case Law on Direct Effect: A Symmetrical Phenomenon 74 6 Incurse: Technical Aspects of Indirect Effects and Limitations 76 7 Conclusion 85 Chapter 3: General Issues and Practice on EU International Agreements (CFSP and PJC (by Now FSJ) Agreements) 87 1 Introduction 87 2 International Legal Personality 88 3 Legal Practice 91 4 Direct Effect 103 4.1 The Area of CFSP and Direct Effect 103 4.1.1 Pre-Lisbon Arguments for and Against Direct Effect 103 4.1.2 Post-Lisbon Arguments for and Against Direct Effect 106 4.2 The Area of FSJ and Direct Effect 110 4.2.1 Pre-Lisbon Arguments for and Against Direct Effect 110 4.2.2 Post-Lisbon Arguments for and Against Direct Effect 111 4.3 Contractual Exclusions of Direct Effect 113 5 Indirect Effect 115 5.1 Indirect Effects: The Significance of the Doctrine of Consistent Interpretation 115 5.2 Indirect Effects of EU Agreements (CFSP and PJC (by Now FSJ) Agreements) 119 6 Conclusion 120 Chapter 4: Jurisdiction of the Court on EU International Agreements 121 1 Introduction 121 2 Jurisdiction of the Court on EC (by Now EU) Agreements Before and After the Lisbon Treaty Reforms 122 2.1 Control ex ante of Legality of EC (by Now EU) Agreements 122 2.2 Control ex post of Legality of EC (by Now EU) Agreements 123 2.2.1 The Court ́s Jurisdiction in Infringement Proceedings 124 2.2.2 The Court ́s Jurisdiction in Annulment Proceedings 126 2.2.2.1 Lack of Competences 127 2.2.2.2 Breach of Essential Procedural Requirements 128 2.2.2.3 Infringement of the Treaties or of Any Rule of Law Relating to Their Application 136 Fundamental Principles of EC Law 138 2.2.3 The Court ́s Jurisdiction in Preliminary Rulings Proceedings 141 2.2.3.1 The Interpretative Jurisdiction of the Court of Justice Over Provisions of International Agreements Concluded Without ... 141 2.2.3.2 The Interpretative Jurisdiction of the Court of Justice Over Provisions of International Agreements Concluded with the... 142 3 Jurisdiction of the Court on CFSP and PJC (by Now FSJ) Agreements 147 3.1 Institutional Scheme of the Treaties and Limitations on Review Before the Lisbon Treaty Reforms 147 3.2 Institutional Scheme of the Treaties and Limitations on Review After the Lisbon Treaty Reforms 153 3.2.1 Control ex ante of Legality of CFSP and FSJ Agreements 153 3.2.2 Control ex post of Legality of CFSP and FSJ Agreements 154 4 The Standard of Assessment 159 4.1 National Judicatures 159 4.2 Union Judicature (Intensity of Judicial Review) 161 5 Conclusion 164 Chapter 5: General Conclusion 166 Appendices: EU Agreements (CFSP and PJC (by Now FSJ) Agreements) Pre-TL 171 Appendix 1: Status and Activities of the European Union with Host States 171 Appendix 2: Participation in European Union Missions 173 Appendix 3: Exchange of Classified Information 177 Appendix 4: Terrorist Finance Tracking Program (TFTP) 178 Appendix 5: Enhanced Cooperation in the Field of Extradition and Mutual Legal Assistance 178 Appendix 6: Processing/and Transfer of PNR Data 179 Appendix 7: Schengen Association 179 Descriptive Repository 180 Descriptive Repository of Provisions in EU Agreements (CFSP and PJC (by Now FSJ) Agreements) with Persons-Related Provisions 180 Status and Activities of the EU with Host States and Persons-Related Provisions 180 Enhanced Cooperation in the Field of Extradition and Mutual Legal Assistance and Persons-Related Provisions 184 EU-US Agreement on Mutual Legal Assistance and Persons-Related Provisions 184 EU-Japan Agreement on Mutual Legal Assistance and Persons-Related Provisions 186 EU-US Extradition Agreement and Persons-Related Provisions 188 Schengen Association: The Iceland/Norway and the Switzerland Association Agreement and Persons-Related Provisions 190 EU-US TFTP Agreement and Persons-Related Provisions 191 Descriptive Repository of Dispute Settlement Procedures 192 Status and Activities of the European Union with Host States and Dispute Resolution 193 European Union Monitoring Mission (EUMM) 194 European Union Police Mission (EUPM) 196 European Union-Led Forces (EUF) 198 European Union Rule of Law Mission 199 European Union Mission in Support of Security Sector Reform 200 Joint Naval Operations, Conducted by the European Union-Led Naval Force (EUNAVFOR) 201 Participation in European Union Missions and Dispute Resolution 202 Exchange of Classified Information Between the European Union and Third States and International Institutions and Dispute Reso... 207 TFTP and Dispute Resolution 208 Enhanced Cooperation in the Field of Extradition and Mutual Legal Assistance and Dispute Resolution 209 The Norway-Iceland Participation and Dispute Resolution 209 Mutual Legal Assistance and Dispute Resolution 209 Extradition and Surrender Procedures and Dispute Resolution 211 PNR and Dispute Resolution 212 Schengen Association and Dispute Resolution 214 Select Bibliography 220 Front Matter ....Pages i-xxv General Introduction (Nadine Zipperle)....Pages 1-8 The Court’s Case Law on Direct Effect of International Agreements (Free Trade Associations, Accession Associations, Development Associations and EEA) and Status of WTO Law (Nadine Zipperle)....Pages 9-62 General Issues and Practice on EU International Agreements (CFSP and PJC (by Now FSJ) Agreements) (Nadine Zipperle)....Pages 63-96 Jurisdiction of the Court on EU International Agreements (Nadine Zipperle)....Pages 97-141 General Conclusion (Nadine Zipperle)....Pages 143-147 Back Matter ....Pages 149-209 This book provides an analysis of the institutional and constitutional effects of EU international agreements, with a particular focus on their potential effects on private parties. The European Union has entered into a number of international agreements that raise serious fundamental rights concerns due to a lack of parliamentary and judicial scrutiny. The book addresses these issues in the context of developments contained in the Lisbon Treaty, focusing on primary and secondary sources, including German/French scholarship, as well as EU and national case law.-- Provided by publisher